The Law of Nations and the Offenses Clause of the Constitution: A Defense of Federalism

Morley, Michael T., The Yale Law Journal

One of the most important features of the United States government as originally conceived by the Framers is that, even before the addition of the Bill of Rights, its powers were strictly regulated by the Constitution. (1) Instead of being a supreme parliament, (2) able to do whatever it believed necessary to promote the nation's health, safety, welfare, or morals, (3) Congress was crafted as a legislature of strictly enumerated powers. (4) Every law passed by Congress must fall within one of these discrete powers, (5) or be "necessary and proper" to the execution of such a power. (6)

In the decades after the New Deal, however, it seemed as if almost nothing was beyond the purview of the federal government. Nearly any federal law could be upheld as an exercise of the commerce power; (7) whatever civil rights measures fell outside its scope were justified by Section 5 of the Fourteenth Amendment. (8) Indeed, in over fifty years, the Supreme Court struck down only one federal law as exceeding Congress's ostensibly limited constitutional authority. (9)

This changed, of course, with three cases starting in the mid-1990s: United States v. Lopez, (10) City of Boerne v. Flores, (11) and United States v. Morrison. (12) For the first time in twenty-five years, the Supreme Court actually struck down laws as exceeding Congress's commerce and Reconstruction powers. The Court even set forth guidelines for determining whether statutes are authorized by the Commerce Clause. (13) As a result of this constitutional upheaval, many academics began to scour the Constitution, looking for alternate fonts of congressional authority to replace the now truncated commerce and Reconstruction powers.

Perhaps the most ingenious suggestion is that proposed by Professor Beth Stephens. (14) Building upon an amicus brief filed in Morrison by certain "International Law Scholars and Human Rights Experts," (15) she argues that a little-known constitutional provision, the Offenses Clause, could serve to authorize not only the laws struck down in Lopez, Boerne, and Morrison, but also legislation affecting almost all spheres of domestic activity. The Clause empowers Congress to "define and punish ... Offences against the Law of Nations." (16) Professor Stephens claims that this provision empowers Congress to enact civil and criminal legislation in any area upon which international law touches. Given the broad sweep of contemporary international law, this approach would turn the Offenses Clause into a Commerce Clause for the twenty-first century. It would bring virtually every aspect of society, including those traditionally left to state regulation, under congressional authority. (17)

This Note takes the opposite point of view, (18) arguing that the Offenses Clause is a modest grant of authority, insufficient to support laws such as the Gun-Free School Zones Act (19) and the Violence Against Women Act (VAWA), (20) or to undermine American federalism. The Clause affirms, rather than undermines, the balance of state-federal relations that the Framers intended. (21) I argue that it allows for the enactment of legislation touching upon only that fixed, discrete set of areas involving intercourse with foreign nations and their citizens--including navigation, trade, war, and diplomacy--that comprise what the Framers believed to be the immutable law of nations. (22)

Part I of this Note explores the claims made by Professor Stephens and the International Law Scholars, setting forth their case for viewing the Offenses Clause as an important source of substantive authority for Congress. It also examines the consequences of this approach, outlining the wide range of areas traditionally reserved to the states that it would enable Congress to regulate. Part II refutes the primary assumption upon which this interpretation is based. First, I argue that the phrase "law of nations" as used in the Offenses Clause is a term of art that is not synonymous with international law. …

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